I had a gallbladder surgery in February. Four days later I began to complain about sore throat and cough. My PCP said there was nothing wrong. I went to the ENT who saw the torn uvula. He stated this happens during improper intubation during surgery. Then I went to the Pulmonist calling for a bronchotomy to assess airway and voice box damage. Can I sue an anesthesiologist for causing a torn uvula and bronchial damage? Does the paperwork that is signed when you go to the hospital void your chance of recovering damages?

ANSWER:

The anesthesiologist may be held liable provided that the conditions for res ipso loquitor are established. Generally, tort liability cannot be established unless plaintiffs can prove their injuries resulted from the tortious acts of a particular defendant or defendants. However, there is the so-called doctrine of “res ipsa loquitur” wherein the burden of proving the absence of negligence rests upon the defendant. This doctrine can be established provided that the following requisites concur: First, that the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence; Second, that the accident was caused by an agency or instrumentality within the defendant’s (or defendant’s )exclusive control; And third, that the accident was not due to any voluntary action or contribution on plaintiff’s part. [2:1750]

The use of res ipsa loquitor doctrine is especially suited in cases of “egregious” medical or dental malpractice where “the unwitting and often unconscious or semi-conscious patient is at an evidentiary disadvantage because of his or her inability to demonstrate what occurred in the hospital or surgical room setting.” [Blackwell v. Hurst (1996) 46 CA4th 939, 945, 54 CR2d 209, 213; see ¶ 2:386 ff.] [2:1759]. Although res ipsa loquitur may be properly invoked in such cases, plaintiff may need expert testimony to establish the elements of res ipsa loquitur (¶ 2:1753). In particular, expert testimony may be required to show the incident does not ordinarily occur absent negligence. “The more complex or unusual the medical process, the more likely it is that expert testimony will be required to establish whether or not the injury was the result of negligence.” For instance, in the case of Elcome v. Chin it was held that “expert testimony required to show that neck and upper extremity injuries following abdominal surgery were likely caused by negligence” [ (2003) 110 CA4th 310, 318, 1 CR3d 631, 638] [2:389].

Moreover, the paperwork that you signed in the hospital does not necessarily void your chances of recovering damages. The rules on release of “known and unknown” claims [CC § 1542] provide that a release does not include claims plaintiff did not know or suspect to exist at the time of executing the release, which if known would have materially affected the settlement. [CC § 1542]. The mere use of the phrase “unknown claims” in the release does not itself suffice to discharge unknown claims; rather, there must be evidence apart from the words of the release to indicate the parties intended to cover unknown claims. [Casey v. Proctor (1963)59 C2d 97, 109–113, 28 CR 307, 314–317]On the other hand, the inclusion of a provision expressly quoting and waiving all rights under [CC § 1542] will ordinarily establish the parties’ intent that the release covers unknown claims. [Jefferson v. California Dept. of Youth Author. (2002) 28 C4th 299, 307, 121 CR2d 391, 397; see Mundy v. Lenc (2012) 203 CA4th 1401, 1410–1411, 138 CR3d 464, 471–472; compare Butler v. Vons Cos., Inc. (2006) 140 CA4th 943, 951, 45 CR3d 151, 157]—plaintiff’s extrinsic evidence raised triable factual issue whether waiver of [CC § 1542] in agreement settling labor grievance with employer was intended to apply to unrelated FEHA action alleging racial harassment and discrimination. [4:498.4].

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